This opinion is subject to
further editing.If published, the
official version will appear in the bound volume of the Official
Reports.

A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals.SeeWis. Stat. § 808.10 and Rule 809.62.

Appeal No.

2012AP1604-CR

Cir. Ct. No.2010CF24

STATE OF WISCONSIN

IN COURT OF
APPEALS

DISTRICT II

State of Wisconsin,

Plaintiff-Respondent,

v.

Keith W. McGary,

Defendant-Appellant.

APPEAL
from a judgment and an order of the circuit court for Calumet County:donald
a. poppy and angela w. sutkiewicz,
Judges.Affirmed.

Before Brown, C.J., Neubauer, P.J., and Gundrum, J.

¶1PER CURIAM. Keith W. McGary appeals a
judgment convicting him of repeated sexual assault of the same child and an
order denying his postconviction effort to secure a new trial.We reject his claims of trial court error and
ineffective assistance of trial counsel.We affirm the judgment and order.

¶2A jury found McGary guilty of repeatedly sexually assaulting
Megan R., the fourteen-year-old daughter of a woman with whom McGary sometimes
resided.McGary filed a postconviction
motion alleging that his trial counsel was ineffective.The trial court denied his motion after a Machner
hearing.[1]McGary appeals.

¶3McGary first contends that the trial court violated his right
to confront his accuser when it would not allow his counsel to question Megan
about allegedly threatening McGary that she was “going to get” him.McGary has forfeited the right of review on this
issue.

¶4An appellant may not claim that evidence was wrongly excluded
“unless a substantial right of the party is affected[] and … the substance of the evidence was made known to the judge by
offer or was apparent from the context within which questions were asked.”Wis.
Stat. § 901.03(1)(b) (2011-12)[2]
(emphasis added).McGary’s defense
theory was that Megan fabricated the assaults.The court had ruled before trial that it would allow evidence relating
to Megan’s character or reputation for truthfulness and to any motive she may
have had for falsifying her accusations.The court also ruled, however, that evidence of her allegedly vindictive
behavior against other family members was not relevant and would require a
specific offer of proof.

¶5Attorney Marcus Falk represented McGary.On cross-examination, Falk asked Megan
whether she ever got angry at McGary if he did not attend events at her school
such as games or parent-teacher conferences or “for any reason.”Megan repeatedly answered “no.”Megan then acknowledged that she was “very
close” to one of McGary’s grandsons who lived with Megan’s family for a time and
got “a little” angry when the boy’s mother took him away.When McGary’s counsel asked Megan if she had
said anything angry to McGary on that occasion, the State objected on the basis
of the court’s pretrial ruling.The
court sustained the objection and Falk turned to a new line of questions.

¶6We cannot assign trial court error because McGary concedes
that he made no offer of proof that he hoped to establish that Megan was angry
at him and so was motivated to lie.Recognizing that, McGary restates the argument as ineffectiveness of his
trial counsel for failing to make an offer of proof.We address the claim in that light.

¶7To establish a claim of ineffective assistance, a defendant
must show that counsel’s performance was deficient and that the deficiency was
prejudicial.Strickland v. Washington,
466 U.S. 668, 687 (1984).A court
reviewing counsel’s performance must be highly deferential and avoid the
distorting effects of hindsight.State
v. Thiel, 2003 WI 111, ¶19, 264 Wis. 2d 571, 665 N.W.2d 305.Counsel’s performance is deficient if it
falls below an objective standard of reasonableness.Id.To prove prejudice, “the defendant must show that ‘there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.A
reasonable probability is a probability sufficient to undermine confidence in
the outcome.’”Id., ¶20 (citation
omitted).We need not address both
components of the test if the defendant fails to make a sufficient showing on
one of them.Strickland, 466 U.S. at
697.

¶9With no witnesses, as is common in sexual-assault cases, and
no forensic evidence, this case turned on credibility.McGary contends that Falk knew it was
essential to establish Megan’s motivation to lie, yet he failed to present any
evidence about the retaliatory threat that she was “going to get [McGary]”
either through Megan or her brother, who had told Falk pretrial that he
overheard her make the threat to McGary.

¶10McGary asserted postconviction that Falk knew that Megan had
told McGary she was angry at him for not attending her sporting events and for
being involved with a woman other than her mother and said she would “get him”
for that, and that one of Megan’s brothers told Falk he had overheard the
threat.

¶11Falk testified at the Machner hearing that he asked Megan
“in more ways than one if she had ever gotten angry at [McGary] for anything”
and Megan repeatedly said she never had.Falk explained that after being “cut off” by the prosecutor’s objection,
he did not press on because he “was trying to follow the court’s order.”Falk also testified that the brother earlier
had said that he confronted Megan about the truth of her accusations as he
“remembered a time in the past when [Megan] had said something to [McGary] to
the effect of I’m going to get you.”At
trial, however, the brother surprised Falk by denying it.

¶13McGary asserts that Megan was angry at him for not attending
her sporting events and for cheating on her mother but provides no evidence to
shore up that claim. He does not
establish when or in what context Megan made the alleged threat that her
brother once claimed to have overheard and that McGary claims Megan made
directly to him.For whatever reason, McGary
did not call the brother as a witness at the postconviction hearing and McGary,
who did testify, was asked no questions about it.

¶14A defendant must affirmatively prove prejudice. State
v. Johnson, 153 Wis. 2d 121, 129, 449 N.W.2d 845 (1990).In other words, “not every error that conceivably
could have influenced the outcome undermines the reliability of the result of
the proceeding.”Id. (citation omitted).The defendant must prove that the error “actually
had an adverse effect on the defense.” Id.
(citation omitted).McGary has not
carried his burden.

¶15McGary also asserts that Falk was ineffective for interfering
with his Fifth Amendment right to testify.SeeState v. Flynn, 190 Wis.
2d 31, 50, 527 N.W.2d 343 (Ct. App. 1994) (stating that we assess such a claim
under Strickland’s two-prong test).McGary contends that, although he told Falk “from day one” that he
wanted to testify, Falk did not explain that the ultimate decision was McGary’s
and did not adequately advise him of the pros and cons of testifying, such that
he did not knowingly and voluntarily waive his right to testify.

¶16A criminal defendant has a fundamental right to testify on his
or her own behalf.State v. Denson, 2011 WI
70, ¶57, 335 Wis. 2d 681, 799 N.W.2d 831.A waiver of the right requires the trial court to conduct an
on-the-record colloquy. Id.

¶17At the outset of the second day of trial, the court did just
that.In response to the court’s
questions, McGary confirmed that: he understood he had the absolute
constitutional right to testify and it was his decision not to; if he chose to
testify he would have to answer the prosecutor’s questions on cross-examination;
nobody made threats or promises to encourage him not to testify; he understood
that no matter what Falk had recommended, it ultimately was his personal choice
to exercise his constitutional right to testify; he was making his choice
voluntarily; and he had no questions for the court about his right to
testify.

¶18His responses notwithstanding, McGary testified at the
postconviction hearing that he was so upset during the colloquy that he could
not remember everything, that he never retreated from his insistence that he
wanted to testify, that “[Falk] told me I wasn’t going to testify and he wasn’t
going to call me,” and that he thought the final decision was Falk’s.

¶19Kathleen Klover, the woman with whom McGary had a relationship,
also testified but to no benefit for McGary’s ineffectiveness claim.She said she was present during two
discussions between McGary and Falk, the upshot of which was only that McGary
wanted to testify and Falk thought it was not in McGary’s best interest.

¶20Falk testified that he told McGary that, while he had the right
to testify and that the final decision was McGary’s, Falk saw “a large number
of pitfalls and potential hazards” and wanted to make clear to McGary that
testifying on his own behalf would be “a gamble.”Among Falk’s concerns were McGary’s criminal
record and his demeanor, which was described through other testimony as angry,
threatening, and abusive.Falk testified
that after another discussion on the second day of trial, McGary advised him
that he had decided not to testify.

¶21The transcript of the waiver colloquy and the postconviction
court’s assessment of the witnesses’ credibility convinced the court that McGary
had, in fact, understood that testifying was his right and whether to exercise
it was his choice. The court remarked on
McGary’s claim that when he gets upset, he cannot remember.The court then noted that, despite his
responses, McGary professed to be so upset during the colloquy that he
remembered nothing, or could not say what he remembered, about what Judge Poppy
said, yet despite being very upset with Falk, McGary could remember clearly
everything Falk said.The court observed
that McGary “cannot have it both ways.”The court’s credibility determinations are not clearly erroneous.We see no deficient performance.

¶22McGary’s final claim of ineffectiveness is that Falk did not
object to comments in the prosecutor’s closing argument that were inflammatory
and “call[ed] on the jurors to reach a verdict based on factors other than
evidence.”This argument also fails.

¶23Counsel is allowed considerable latitude in closing arguments,
with the trial court having discretion to determine the propriety of the
argument. State v. Draize, 88 Wis.
2d 445, 454, 276 N.W.2d 784 (1979).Counsel crosses the line between permissible and impermissible argument when
he or she goes beyond reasoning from the evidence to a conclusion of guilt and
instead suggests that the jury arrive at a verdict by considering factors other
than the evidence.Seeid.The test is whether
the prosecutor’s closing remarks so infect the trial with unfairness as to make
the conviction a denial of due process.State
v. Wolff, 171 Wis. 2d 161, 167, 491 N.W.2d 498 (Ct. App. 1992).

¶24McGary contends that Falk deficiently failed to object to the
prosecutor’s following comments in her closing argument:

Sexual
assaulters don’t want people around when they’re sexually assaulting their
victims, obviously because they want these cases to be difficult to prove.They don’t want the community to come back
and say, you are accountable for what has happened here.

This is your
county.I’m a guest here.[3]These are our children, these are our little
girls, they belong to you.We need to
protect them.

¶25McGary asserts that Falk should have objected to the
remarks.He argues that the jury heard
no evidence about the common behavior of sexual offenders, i.e., that sex
offenders want the cases against them to be hard to prove or want to avoid
accountability in the community.Calling
on the jurors to protect the county’s children, McGary contends, was tantamount
to telling them that to acquit him was to release a known sex offender to
further victimize other children.

¶26Falk testified that he did not object because he thought the
statements about protecting the community and that sexual assaulters do not
want to get caught and be held accountable were “so self-evident” and a matter
of common knowledge to ordinary people as to make an objection inappropriate.

¶27The trial court held that, for the same reasons Falk gave, he
was not ineffective for failing to object to the prosecutor’s remarks.We agree.We also observe that the court instructed the jury that it was to decide
the case solely on the evidence offered and received, to disregard remarks by
the attorneys that suggested any facts not in evidence, and that closing
arguments, including the attorneys’ conclusions and opinions within them, are
not evidence. “Jurors are presumed to have
followed jury instructions.” State
v. LaCount, 2008 WI 59, ¶23, 310 Wis. 2d 85, 750 N.W.2d 780.

¶28For the above-stated reasons, we deny McGary’s request for a
new trial.